Monday, December 10, 2012

Cracking Down on Antiquities Trafficking by Changing Homeland Security's "Seize and Send" Policy

Cracking
down on the illegal antiquities trade by regularly prosecuting criminal
offenders and dismantling their infrastructure must be a leadership priority for
U.S. Immigration and Customs Enforcement's (ICE). The Homeland Security
Investigations (HSI) directorate of ICE currently pursues a "seize and send" policy focused on recovering and repatriating antiquities rather
than investigating and indicting criminals. That policy must change in
order to effectively combat a crime that permanently destroys the
archaeological record and injures both history and culture.

HSI Special Agent-in-Charge James Hayes with Indian idols seized last week.

ICE's seize and send policy is
illustrated by many of the agency's press
releases. It was restated last week during a Chasing
Aphrodite interview
with James T. Hayes, Jr., Special Agent-in-Charge of HSI New York. Hayes defended the
seize and send policy:

"The focus is
always to return stolen property to its rightful owners," Hayes acknowledged,
saying making criminal cases was desirable but challenging. "You have to have
a legal basis to prove those items, and you have to prove certain things and
that proves very difficult. We’re dealing with laws around the world, in
foreign courts and different jurisdictions."

HSI's chief added,
"At the end of the day, our primary responsibility is to get
stolen property back to its rightful owners."

Returning
stolen property to owners is a regular goal of many law enforcement
agencies. But there is little indication that simply recovering and
repatriating cultural property puts smuggling networks out of business. Criminals engaged in the illegal antiquities trade surely realize that they
face little or no risk of legal accountability for their actions. They must
also be aware that the occasional confiscations by police of portions of their
inventories do not actually take down their supply, transportation,
conservation, distribution, marketing, and sales infrastructures. That is
why prosecutions, coupled with forfeitures of infrastructure assets
(instrumentalities forfeitures), should be made part of law enforcement's
response.

The decision not to pursue
prosecutions and instrumentalities forfeitures on a regular basis produces
several negative outcomes:

First, because antiquities
traffickers go unindicted, the risk of offenders facing the consequences of prosecution--jail,
fines, probation, and/or a criminal record--is eliminated. Naturally, there is
neither general nor specific deterrence against the commission of antiquities trafficking when there is no fear of
getting caught.

Second, court sentences will
continue to be light in those rare circumstances when antiquities smuggling
prosecutions are actually brought forward. That is because the judiciary,
not seeing many cases on their dockets, will believe that this criminal
activity is insignificant in scope or impact.

Third, the infrastructures used to
facilitate antiquities trafficking remain intact. Seizures of
ancient pots or Egyptian sarcophagi may remove the fruits of an antiquities
trafficker's crime, but their confiscation by authorities likely represents a
only portion of the trafficker's illegal inventory at any given moment. Such limited seizures cannot be expected to shut down expansive global networks
operating continuously. Seizures of the instrumentalities used to commit
antiquities trafficking, by contrast, could help dismantle large swaths of
trafficking infrastructures. Just as asset forfeitures in drug cases
confiscate the automobiles, boats, planes, homes, etc. used in unlawful
narcotics manufacturing and distribution networks, seizures of the
instrumentalities used to traffic illegal antiquities could disrupt or shut down
antiquities trafficking chains.

Finally, prosecutors and police
will continue to confront both a learning curve and inefficiency so long as there is no change in enforcement policy. Routine antiquities trafficking prosecutions
and enforcement, by contrast, would prompt prosecuting attorneys and detectives
to meticulously learn how the crime operates, what evidence is commonly
found in such cases, and what legal defenses typically arise. The experiences gained
would foster more efficient criminal investigations in the field and more
effective legal cases in the courtroom.

HSI's chief is correct to
observe that antiquities trafficking cases can be complex. But law
enforcement authorities over the decades have discovered ways to unravel
complex transnational transactions. If complicated international money
laundering, commodities smuggling, and drug trafficking cases can be solved and
prosecuted, so too can antiquities trafficking cases. Indeed, criminal
organizations have little incentive to cease trafficking operations if law enforcement concede that their activities are too hard to prosecute.

When criminal investigations become
too complex to warrant effective action under one set of laws, one enforcement
tactic is to separate the overall crime into component parts, examining the
parts under different statutes. So instead of building an antiquities
trafficking case broadly around the National Stolen Property Act, for
example--which relies on an review of foreign ownership laws to determine if a
trafficking suspect has knowingly received stolen antiquities in violation of
the statute--authorities might shift their focus to build a case on the basis
of false statements. Put another way, one method of not "dealing with laws around the world, in foreign courts
and different jurisdictions" is to focus on the cover-up rather than
the crime.

It
is widely known that criminals rarely act in the open, committing fraud and
deceit to conceal their activities. That is why criminal cultural
property importers oftentimes falsify customs paperwork, classifying looted
antiquities as something else on import forms. Making a false statement
on an official customs form is a crime
under 18 U.S.C. 542, and prosecutions under this statute do not require
reliance on anything except evidence of criminal falsification. Juries
simply need to be shown that an ancient antiquity found in a cargo crate is not
a "garden table set" or some other false description written down on
a customs form. Criminal knowledge of the false statement, meanwhile, can be
demonstrated by additional positive evidence and/or by circumstantial
evidence--which counts in a criminal case--showing that the criminal defendant
was “without reasonable cause to believe
the truth of such statement.” This example demonstrates that there may be
other, potentially simpler, legal and investigative options available to
authorities.

Cicero said,
"What one has, one ought to use: and whatever
he does he should do with all his might." HSI agents are seasoned
investigators who should be given the green light to use their skills with all
their might in an effort to expose the illegal antiquities trade and take down
its networks. Partnering with prosecutors, HSI should systematically
apply the National Stolen Property Act, the false statements law, and many
other federal laws to successfully combat antiquities trafficking. Referring cases for state prosecution should also be a routine consideration
rather than an occasional one. Coupled with the seizure of assets used to
facilitate antiquities trafficking, regular prosecutions in the courts would
dismantle or disrupt these criminal networks more effectively than the current
seize and send policy.

This post is researched, written, and published on the blog Cultural
Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com.
Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor
at Law, PLLC. Any unauthorized reproduction or retransmission of this post is
prohibited. CONTACT: www.culturalheritagelawyer.com

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